The Indian Constitution’s unitary tilt

The Constitution of India being signed by Members of the Constituent Assembly in January 1950. In the face of a brute majority, our constitutional structure reveals its tendencies to concentrate power.   | Photo Credit: The Hindu Photo Archives

The recent political developments around the Citizenship (Amendment) Act (CAA) and the National Register of Citizens (NRC) have revealed some of the most significant crevices of Indian federalism. Soon after the protests erupted, several State governments occupied by Opposition parties or partners of the Bharatiya Janata Party (BJP) declared that they would not implement the law. Further, in a somewhat unprecedented move, the Legislative Assembly of Kerala went to the extent of passing a resolution, stating that the law “contradicts the basic values and principles of the Constitution”. Indeed, the resolution is only symbolic, and has no legal ramifications. And, though the passage of any such resolution is not constitutionally barred, it may not be in tune with the federal scheme under the Constitution.

Similarly, Article 256 of the Constitution obligates the State government to ensure implementation of the laws made by Parliament. If the State government fails to do so, the Government of India is empowered to give “such directions to a State as may appear... to be necessary”. The refusal to enforce the law even after the Centre issues directions would empower the President to impose President’s Rule in those States under Articles 356 and 365. The Supreme Court of India has also confirmed this reading of the law in S.R. Bommai v. Union of India — arguably the most significant case on Indian federalism.

Anti-CAA ads in West Bengal

Another controversy arose in West Bengal, where the State government put anti-CAA advertisements on its websites. In an interim order, the Calcutta High Court directed the State government to remove those advertisements. The question — whether State governments are empowered to use public funds to campaign against a law made by Parliament — is open for final determination. In its final judgment, the High Court could bar the State government from campaigning against a parliamentary law.

Therefore, neither the refusal to implement nor the official protests registered by State governments carry much legal force. However, we will be missing the forest for the trees if we fail to see the premise that has led to such proactiveness on the part of some State governments — the emergence of a dominant party at the Centre. Political analysts have offered various nuanced takes on what the rise of the Bharatiya Janata Party (BJP)’s dominance means for electoral politics. The impact of a single-party dominance on the functioning of our constitutional structure, however, receives little attention. For instance, Parliament, the avowed “temple of democracy”, has been reduced to a site for procedural formalities. At least the Lok Sabha appears to be an extension of the executive, rather than a mechanism for its accountability.

Power of brute Central majority

This truncation of the role of Parliament in the face of single-party dominance is further facilitated by the poor understanding of the role of a parliamentary Opposition in Indian politics. Once the competition for people’s vote is over, it goes, the losers should step aside, respect the democratic mandate, and let the government do its job. The Opposition may question the government like ordinary citizens, or prepare for the next election, but should not meddle in governance. Any further interference by the Opposition, particularly in such polarised times, would risk inviting the labels of anti-national “seditious cabals”. The brute dominance of the ruling persuasion has dwarfed any semblance of Opposition politics at the Centre. This is manifested through the absence of the Leader of Opposition in Lok Sabha for six years in a row (a consequence of an archaic and arguably unlawful practice requiring a party to secure at least 10% of total seats to occupy the position of Leader of Opposition), the denial of an Opposition vote in the appointments to various anti-corruption bodies, etc. Further, with the Opposition failing to show any signs of resilience, national politics seems to be operating in the absence of any credible political check.

Arguably, such capture is not unprecedented. Time and again, our experiences with single-party dominance have shown that in the face of comfortable majorities, our constitutional structure reveals its tendencies to concentrate power. The concentration of power, dormant in the times of coalition governments, is not merely a bug introduced by the BJP, but is embedded into the very structure of the Constitution. A ‘Centrist bias’ of the Indian Constitution further augments the powers of the brute national majority. In the backdrop of a bloody partition and threats of “fissiparous tendencies”, it was probably justified for the founders of the Indian republic to be hesitant in instituting a stronger federalism. If we wanted to be together, the argument went, we could only have so much federalism.

Electoral federalism

But over seven decades, there have been changes in ground realities. Over the last couple of years alone, we have seen repeated examples of huge vote swings between national and State elections, separated by only a few months, in the same constituencies. And that too against a dominant national party with unprecedented organisational capabilities. These have offered convincing evidence that Indian voters are not only nuanced in their voting choices, but can also reconcile their seemingly contradictory votes in national and State elections. In other words, federalism is not a mere legal division of powers; the democracy and voters, too, are becoming federal. This popular embrace of electoral federalism may be one of the most significant achievements of Indian democracy.

Hence, thanks to electoral federalism, the “losers” of national politics can still win State elections and form legitimately elected governments. The State governments are thus filling the Opposition deficit at the Centre. With this shift of Opposition politics from New Delhi to State capitals, the politics of Opposition is likely to become the politics over federalism. Is the whole greater than the sum of its parts, as the Central government would want us to believe? Or are the parts going to determine the future of the whole, as State governments are likely to argue?

The conflict that the CAA has triggered might become a template for future contestations over the federal question. While the politics seems to be ripe for advancing federalism, the law is likely to constrain such a development. We should not be surprised if the Constitution, a product of its time, falls behind the demands of democratic politics. The protesters are fighting for upholding the founding commitments of the Constitution. Ironically, the very Constitution that could ensure the fulfillment of the protesters’ demands is empowered to hamper federal politics. Perhaps there also lies a cautionary note against constitutional idolatry.

Aradhya Sethia is an M. Phil candidate at the University of Oxford

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Printable version | May 17, 2021 6:49:27 AM |

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